WASHINGTON (SBG) — President Donald Trump has placed his record of conservative nominations for the Supreme Court and the federal judiciary at the center of his reelection campaign, but former Vice President Joe Biden has said little about the issue even as polls show growing concern among Democrats about the future of the court.
President Trump has speculated there could be as many as four or five openings on the court in the next four years, and that is not out of the question. Liberal Justices Ruth Bader Ginsburg and Stephen Breyer are in their 80s, and aging conservative justices might choose to retire if Trump is still president rather than wait and see who wins in 2024.
Trump released a list of potential choices to fill those slots last week, including several judges he appointed to lower courts in his first term, prominent Republican litigators, and three conservative GOP senators: Tom Cotton, Ted Cruz, and Josh Hawley. Cotton responded to the announcement by tweeting, “It's time for Roe v. Wade to go.”
The president has often complained that the Supreme Court is not conservative enough when the majority has ruled against his interests. Democrats fear a second term would enable him to solidify a conservative majority for decades to come, potentially threatening any legislative gains they make under future administrations.
The Trump campaign touted his new shortlist as proof of his commitment to nominating originalist judges who support the Second Amendment and religious rights. The president also demanded Biden put forth his own list of possible Supreme Court justices.
“President Trump has fulfilled his promise to appoint originalist judges who are the guardians of our rights and freedoms for the next half-century of American jurisprudence,” said Trump campaign legal adviser Jenna Ellis. “Joe Biden would fill the bench with activists and socialists who would give government increasing power and trample our rights.”
Biden has committed to naming the first Black woman to the Supreme Court, but he has not identified potential nominees or said much about his preferred judicial philosophy. He has also rejected calls from some on the left to expand the Supreme Court if he wins.
This fight is not only about the Supreme Court, though. Since taking office, Trump has nominated more than 200 federal judges, accounting for more than a quarter of all sitting judges. He has appointed 53 appellate judges, flipping three of the nation’s appeals courts from Democrat-appointed majorities to Republican-appointed majorities.
“It is the one campaign promise he has really, really come through on,” said John Kilwein, an expert on judicial politics at West Virginia University.
Those judges have already made important and, in some cases, controversial decisions. Trump celebrated a decision Monday by one of his appointees, U.S. District Judge William Stickman IV, striking down Pennsylvania’s coronavirus restrictions on businesses.
During the 2016 campaign, a Democratic nominee to replace the late conservative Justice Antonin Scalia was being blocked by a Republican Senate, but polls still showed far less passion over the issue on the left than the right. According to exit polls, voters who deemed the Supreme Court the most important issue favored Trump by 15 points over Democratic nominee Secretary Hillary Clinton.
“The Republican base has been more focused on that issue than the Democratic base has from Reagan forward, roughly,” said Thomas Keck, author of “Judicial Politics in Polarized Times” and a professor of political science at Syracuse University. “There’s some evidence that that’s shifting.”
There have been signs recently that the judiciary has become a higher priority for Democrats, and that it could be a winning issue for Biden. A Fox News poll conducted last week found likely voters trust Biden more than Trump on Supreme Court nominations by a margin of 7 points.
In a Pew Research Center survey released in August, 64% of registered voters said Supreme Court nominations were “very important” to their vote in November, more than the share that said the same about the coronavirus pandemic or violent crime. Biden supporters were slightly more likely than Trump supporters to consider the courts a top issue.
A Morning Consult/Politico poll conducted in early August—soon after Ginsburg announced she had resumed chemotherapy—indicates this is a relatively recent change. The percentage of Democrats who considered the Supreme Court very important to their vote was 57%, up 9 points from May, while the percentage of Republicans who viewed it as a top priority was unchanged at 53%.
According to a recent CNN survey, the Supreme Court is the fourth most important issue for voters heading into this election, behind the economy, health care, and foreign policy. Nearly half of Biden supporters ranked it as “extremely important,” compared to 32% of Trump voters.
During his Republican National Convention speech last month, President Trump twice mentioned his promise to nominate judges and Supreme Court justices “who believe in enforcing the law.” Several other convention speakers spotlighted specific decisions the Supreme Court has made with Trump’s appointees voting with the majority.
Meanwhile, Biden made no reference to the Supreme Court or the federal judiciary in his Democratic National Convention address. Senate Minority Leader Chuck Schumer, D-N.Y., committed to attempting to “restore a Supreme Court that looks out for people, not corporations” in his convention speech, but the future of the courts was otherwise rarely brought up during the four-night event.
“Biden isn’t looking to rock the boat in the next 50-odd days and the courts are such a divisive issue,” said Democratic strategist Bradley Honan.
Democratic activists have attempted to push the courts toward the forefront within the party, with some success. The 2016 Democratic Party platform only included one brief paragraph on judges, but the 2020 platform went further, committing to “structural court reforms” and creating new federal district and circuit court judgeships to handle rising caseloads.
The Supreme Court Voter project, an initiative aimed at educating progressives about the importance of the courts, ran an ad on CNN and MSNBC during the fourth night of the Democratic convention highlighting the issue. The spot warned Republicans would “dominate the Supreme Court forever” if Trump gets to appoint more justices.
Dominating the Supreme Court is exactly what President Trump promises his base with his new list of possible nominees. In 2016, unveiling a list of potential justices helped evangelicals and others on the right overcome doubts about his character, but the political benefit is less certain this time.
Nan Aron, president of the liberal Alliance for Justice dismissed Trump’s shortlist as a “last-ditch” effort to energize social conservatives and distract from negative news stories. However, she added that the names on the list represent clear threats to abortion rights and LGBTQ rights.
“We cannot allow this purely political ploy to become a reality. If he is allowed to fill another Supreme Court seat, it would be yet another disaster for our democracy,” Aron said in a statement.
According to Brian Fallon, executive director of progressive court advocacy group Demand Justice, the political environment has changed since 2016, amid controversy over recent decisions, concerns about Ginsburg’s health, and continuing progressive outrage over Justice Brett Kavanaugh’s 2018 confirmation despite sexual misconduct allegations against him.
This time, Fallon predicted the polarizing figures on Trump’s new shortlist would help galvanize the Democratic base and crystalize the stakes for those on the left who might not be enthusiastic about Biden.
“As someone whose job it is to get progressives to care more about the court, I could not imagine a better gift than Trump threatening to replace a venerable figure like Ginsburg with Cruz,” Fallon, a formers spokesman for Clinton’s 2016 campaign, wrote in an NBC News op-ed.
Experts say navigating the politics of judicial nominations is more complicated for Biden than Trump because he tries to appeal to a more ideologically diverse base. He would have little to gain and a lot to lose by putting forth a list that would inevitably leave some voters disappointed.
“The Democratic Party is a diverse, big tent and there would be lots of constituencies you’re trying to signal to with that list,” Keck said.
Trump’s lists have mainly been culled from recommendations by conservative groups like the Heritage Foundation and the Federalist Society. There is no similar source for a list that would satisfy Biden’s coalition of moderate Democrats, progressives, and anti-Trump Republicans.
“I think Biden has to thread a fine path here,” Kilwein said. “If he goes too much to the AOC and liberal side, he’s going to lose some people in Pennsylvania, Michigan, Florida.”
After the last four years, the courts matter more to Democrats than they have in the past. However, in the middle of a pandemic, a recession, and a national debate over racial justice, balancing the ideological makeup of the federal judiciary might not carry as much urgency for the voters Biden most needs to convince.
“If you’re the Biden campaign and you think this election is going to be won by appealing to white moderates in the Midwest, maybe it feels like focusing on coronavirus and Trump’s bad handling of that is the way to go,” Keck said.
Even if polls show Biden is favored over Trump on Supreme Court nominations, he holds an even larger advantage on who Americans trust to handle the coronavirus outbreak and race relations. Hatred of Trump and fear of what he would do in a second term are also bigger factors driving Biden’s support than expectations for his judicial nominations.
“Biden’s strategy is to be the nice moderate guy, who isn’t hellbent on pursuing broad liberal agenda if elected,” Honan said. “He is going after the disenchanted GOP and independent swing voters; those living in the suburbs, more moderate Latinos, and likely even some evangelicals who can’t stomach four more years of Trump, but are unnerved by the Squad and their policies,” Honan said.
Also, while few see a likely scenario where Trump wins reelection but Republicans lose control of the Senate, the prospects for Biden having a Democratic majority in the Senate if he wins are much less certain. The outcome of close Senate races in November will greatly impact the kind of judges a President Biden would be able to confirm.
“If he doesn’t get the Senate, he’s hamstrung just like Obama was at the end,” Kilwein said.
Progressive groups have already expressed alarm about whether Sen. Dianne Feinstein, the likely Judiciary Committee chairwoman if Democrats retake the Senate, would be aggressive enough in confirming Biden nominees. Feinstein recently equivocated on whether she would honor the tradition of allowing home-state senators to block judicial nominees by withholding “blue slips,” a practice Republicans abandoned under Trump.
“If you keep the blue slip, you’re tying at least one hand behind your back,” Meagan Hatcher-Mays, director of democracy policy for Indivisible, told The Los Angeles Times. “For her to waver on this arcane process — that does nothing but give power to Republicans in the minority — makes absolutely no sense.”
Most Democrats seem content to have that debate after the election once it is clear who will control the White House and the Senate in 2021. For now, the Biden campaign and its allies are trying to play it safe, but President Trump seems intent on forcing a fight over the courts that carries political risks for both sides.
“Biden is far more concerned with winning over swing voters in states that could make the Senate Democratic like Georgia, North Carolina, Maine, Iowa, and Montana, than he is by upsetting ultra-progressives in Berkeley or Brooklyn,” Honan said. “His balancing act on the courts is to stay silent.”